What is Spoliation?
No, it’s not spelled wrong. Pronounced “spot-lee-ation”, spoliation of evidence is often used during the process of civil litigation. It arises when one side suspects or uncovers that the other party has deliberately, negligently or accidentally destroyed evidence relevant to the case. The spoliation doctrine is invoked when a party alleges that its opposing party has caused a crucial piece of evidence to be unavailable.
Why Should I Care About Spoliation?
If you are responsible for archiving information that may be used during a legal proceeding, then it’s really important to understand spoliation. While deliberate destruction of archived data is less common, spoliation charges can still be filed for improper process and procedure for the records in question.
While courts vary in how they treat evidence that is “not available” (but reasonably should be); there are consequences for not holding onto or producing evidence that was known to exist. A common response from the courts is to view, the defendant as hiding information. In this case, the court may treat missing evidence as favorable to the plaintiff. In many cases additional sanctions and financial penalties will also be levied. The faster and more complete the production of records under e-Discovery, the better. The speed and accuracy of a properly managed compliance archiving system will enable a more prepared legal team who will be less likely to be surprised by records provided by the other side. Also as importantly, having a tamper-proof record makes it hard for the other side. If they produce a record that does not match, the chain of custody on that record provides compelling credibility for the archived version.
A Real World Example
Central European News sued Buzzfeed over allegations of fake news. (Leidig v. Buzzfeed) Fake news is news these days, but what got our attention were shifts by the court to tolerate improper records retention. The improper retention resulted in charges of spoliation, incomplete production, and the assertions from the bench that attempting to hide (or distract) e-Discovery would no longer be tolerated.
In particular, a couple of key points in LegalTech’s summary of the case are important for those responsible for the retention and governance of corporate records:
- No special effort was made to preserve the document concerning the Buzzfeed piece. ”Plaintiff “was instructed by counsel to preserve evidence only evidence only after the lawsuit was filed.”
With the increased ease of email and communications archiving, the argument that it is too expensive or not a high enough priority is one we still see. The Information Security and Compliance staff often are proactive in trying to address retention but are often shut down by others in the organization who do not yet see the value of a proactive archiving system. Often the conversation changes radically once a team has had to go through a production effort, at which point data may no longer even exist. Most organizations can expect legal action as a course of business. Judges are signaling that a lack of retention is not an acceptable practice.
- Metadata was inadvertently modified and deleted when the plaintiff attempted to manually move files to a production repository.
What happened here was spoliation: data was moved from one location to another in such a way that the metadata was modified or even removed. Here’s a real-world impact of what can happen when a technical decision to handle data in a more unstructured manner has repercussions to the bottom line. Often people look at our retention solutions; and then try to go and make low cost workarounds that involve pushing or copying data from one system to another without understanding the impact to not only the record, but the impact when challenged in court. We see it time and again, and we’ve yet to see a long term successful outcome when attempting to short-cut proper archiving protocols.
However, technology is just part of the issue. In a recent judges’ report cited in this article, “30 active federal judges said the problem with e-Discovery for most attorneys isn’t process or technology, it’s an overly adversarial mindset. When asked how attorneys could best improve e-Discovery practices, the number one response given was “cooperating with opposing counsel.”
Legal counsel likely fears what exists in their data, or the effort to review and produce. In reality, proactive retention with technology like our OneVault Multi-Data Archiving Platform can help organizations respond faster at lower cost because data can be found, and put into context while maintaining good records retention hygiene.
When it comes to archiving, spoliation and information governance, definable retention with a tamper-proof archive strengthens and prepares the legal defense. They have complete defendable records with which to work. Trying to work around the data is no longer tolerated. “It’s not personal, it’s e-Discovery.”
Note: The information shared here is for educational purposes only and should not be considered legal advice. Consult with your legal counsel for more information and assistance.
Resources:
- Compliance Archiving: Understanding the Key Features You Must Have
- Beyond Compliance: The Dawn of Agile Data Retention
- On-Demand Replay: Why Archiving Should Expand Beyond Email with Osterman Research
- Osterman Research: Top Reasons to Archive
- Evolving Trends in Communication Records Preservation
- Communications Archiving with OneVault
